Case number

C-262/20

Case name

Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto“

Document

Judgment ECLI:EU:C:2022:117

Date

24/02/2022

Source of the question referred for a preliminary ruling

Rayonen sad Lukovit (District Court, Lukovit, Bulgaria) 

Name of the parties

VB v Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto

Subject matter

Employment and social policy; protection of workers' health and safety at work; accounting and payment for hours worked at night

Key words

VB - Social policy - Organisation of working time - Directive 2003/88/ - Charter of Fundamental Rights of the European Union - Reduction of the normal length of night work in relation to day work - Public sector workers and private sector workers - Equal treatment

Question referred for a preliminary ruling

(1)      For the purposes of effective protection under Article 12(a) of Directive [2003/88], should the normal length of night work of police officers and firefighters be shorter than the normal length of day work?

(2)      For the purposes of the principle of equality set out in Articles 20 and 31 of the [Charter], must the normal length of night work laid down in national law for workers in the private sector (7 hours) also apply to public-sector workers, including police officers and firefighters?

(3)      Can the objective of limiting the duration of periods of night work mentioned in recital 8 of Directive [2003/88] be effectively attained only if the normal length of night work, including for public-sector workers, is expressly laid down in national law?’

Decision

1.      Article 8 and Article 12(a) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time are to be interpreted as not requiring the adoption of national legislation providing that the normal length of night work for public-sector workers, such as police officers and firefighters, must be shorter than the normal length of day work laid down for those workers. Such workers must, in any case, enjoy other protective measures in the form of working time, pay, allowances or similar benefits, such as to compensate for the particular burden entailed by the night work they perform.

2.      Articles 20 and 31 of the Charter of Fundamental Rights of the European Union are to be interpreted as not precluding the normal length of night work fixed at seven hours in the national law of a Member State for workers in the private sector from not applying to public-sector workers, including police officers and firefighters, if that difference in treatment is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by that legislation, and it is proportionate to that aim.

Case number

C-930/19

Case name

X v Belgian State

Document

Judgment ECLI:EU:C:2021:657

Date

02/09/2021

Source of the question referred for a preliminary ruling

Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium)

Name of the parties

X v État belge

Subject matter

Area of freedom, security and justice; asylum policy; border control

Non-discrimination and citizenship of the Union; maintenance of the right of residence on Belgian territory

Key words

X - Belgium - Right of residence of family members of a Union citizen - Marriage between a Union citizen and a third-country national - Retention, in the event of divorce, of the right of residence by a third-country national who is the victim of acts of domestic violence committed by his or her spouse - Requirement to demonstrate the existence of sufficient resources - No such requirement in Directive 2003/86/EC - Validity - Charter of Fundamental Rights of the European Union - Equal treatment - Difference in treatment based on whether the sponsor is a Union citizen or a third-country national - Non-comparability of situations

Question referred for a preliminary ruling

‘Does Article 13(2) of [Directive 2004/38] infringe Articles 20 and 21 of the [Charter], in that it provides that divorce, annulment of marriage or termination of a registered partnership does not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where, inter alia, this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting, but only on the condition that the persons concerned show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements, whereas Article 15(3) of [Directive 2003/86], which makes the same provision for the right of residence to continue, does not make its continuation subject to that condition?’

Decision

The consideration of the question referred by the national court has disclosed no factor of a kind such as to affect the validity of Article 13(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in the light of Article 20 of the Charter of Fundamental Rights of the European Union.

Case number

C-570/19

Case name

Irish Ferries

Document

Judgment ECLI:EU:C:2021:664

Date

02/09/2021

Source of the question referred for a preliminary ruling

High Court (Ireland)

Name of the parties

Irish Ferries Ltd v National TranspFort Authority

Subject matter

Transport; rights of passengers during their journey; compensation for passengers affected by the cancellation of services between Dublin (Ireland) and Cherbourg (France).

Key words

Irisf Ferries - Maritime transport - Rights of passengers when travelling by sea and inland waterway - Regulation (EU) No 1177/ - Cancellation of passenger services - Late delivery of a vessel to the carrier - Notice given prior to the originally scheduled date of departure ‒ Consequences - Right to re-routing - Procedures - Payment of the additional costs - Right to compensation - Calculation - Concept of ticket price - National body responsible for the enforcement of Regulation No 1177/2010 - Competence - Concept of a complaint - Assessment of validity - Charter of Fundamental Rights of the European Union - Principles of proportionality, legal certainty and equal treatment

Question referred for a preliminary ruling

(1)      Does [Regulation No 1177/2010] (in particular Articles 18 and/or 19) apply in circumstances where passengers have made advance bookings and entered into transport contracts and where the passenger services are cancelled with a minimum of seven weeks’ notice prior to the scheduled departure due to the delay in the delivery of a new vessel to the ferry operator? In that regard, are any (or all) of the following matters relevant to the applicability of [that] regulation:

(a)      delivery was ultimately delayed by 200 days;

(b)      the ferry operator had to cancel a full season of sailings;

(c)      no suitable alternative vessel could be obtained;

(d)      over 20 000 passengers were rebooked by the ferry operator on different sailings or refunded their fares;

(e)      the sailings were on a new route opened by the ferry operator with no similar alternative service on the route?

Decision

1.      Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 must be interpreted as meaning that it applies where a carrier cancels a passenger service giving several weeks’ notice prior to the originally scheduled departure because the delivery of the vessel required to provide that service was delayed, and could not be replaced.

2.      Article 18 of Regulation No 1177/2010 must be interpreted as meaning that, where a passenger service is cancelled and there is no alternative service on the same route, the carrier is required to offer to the passenger, by virtue of the passenger’s right to re-routing under comparable conditions and at the earliest opportunity to the final destination provided for in that provision, an alternative service that follows a different itinerary from that of the cancelled service or a maritime service coupled with other modes of transport, such as rail or road transport, and is required to bear any additional costs incurred by the passenger in re-routing to the final destination.

3.      Articles 18 and 19 of Regulation No 1177/2010 must be interpreted as meaning that, where a carrier cancels a passenger service giving several weeks’ notice before the originally scheduled departure, a passenger has a right to compensation under Article 19 of that regulation where he or she decides, in accordance with Article 18 of that regulation, to be re-routed at the earliest opportunity or to postpone the journey to a later date and that passenger arrives at the originally scheduled final destination with a delay that exceeds the thresholds laid down in Article 19 of that regulation. By contrast, where a passenger decides to be reimbursed for the ticket price, he or she does not have such a right to compensation under that article.

4.      Article 19 of Regulation No 1177/2010 must be interpreted as meaning that the concept of ‘ticket price’, referred to in that article, includes the costs relating to the additional optional services chosen by the passenger, such as the booking of a cabin or a kennel, or access to premium lounges.

5.      Article 20(4) of Regulation No 1177/2010 must be interpreted as meaning that the late delivery of a passenger transport vessel which led to the cancellation of all sailings to be operated by that vessel in the context of a new maritime route does not fall within the concept of ‘extraordinary circumstances’ within the meaning of that provision.

6.      Article 24 of Regulation No 1177/2010 must be interpreted as meaning that it does not require a passenger who requests compensation under Article 19 of that regulation to submit his or her request in the form of a complaint to the carrier within two months from the date on which the service was performed or when a service should have been performed.

7.      Article 25 of Regulation No 1177/2010 must be interpreted as meaning that the competence of a national body responsible for the enforcement of that regulation designated by a Member State covers not only the passenger service provided from a port situated in the territory of that Member State, but also a passenger service provided from a port situated in the territory of another Member State to a port situated in the territory of the first Member State where the latter service is part of a return journey which has been entirely cancelled.

8.      Examination of the tenth question has not revealed any factor capable of affecting the validity of Articles 18 and 19 of Regulation No 1177/2010.
 

Case number

C-555/19

Case name

Fussl Modestraße Mayr

Document

Judgment ECLI:EU:C:2021:89

Date

03/02/2021

Source of the question referred for a preliminary ruling

Landgericht Stuttgart (Regional Court, Stuttgart, Germany) 

Name of the parties

Fussl Modestraße Mayr GmbH v SevenOne Media GmbH and Others

Subject matter

Free movement of persons and services; freedom to provide services; provision of audiovisual media services ; equality before the law Television advertising only at regional level

Key words

Fussl - Provision of audiovisual media services - Article 4(1) - Freedom to provide services - Equal treatment - Charter of Fundamental Rights of the European Union - Audiovisual commercial communication - National legislation prohibiting television broadcasters from inserting in their programmes broadcast throughout the national territory television advertisements whose broadcasting is limited to a regional level

Question referred for a preliminary ruling

‘(1)      Are Article 4(1) of Directive 2010/13 …, the principle of equal treatment under EU law and the rules under Article 56 TFEU on freedom to provide services to be interpreted as meaning that they preclude a provision in national law that prohibits the regional broadcasting of advertising on broadcasting programmes authorised for the entire Member State?

(2)      Is Question 1 to be assessed differently if the national law allows statutory rules pursuant to which the regional broadcasting of advertising can be permitted by law and, in that case, is permitted with an - additionally required - official permit?

(3)      Is Question 1 to be assessed differently if no use is actually made of the possibility of permitting regional advertising as described in Question 2 and regional advertising is therefore prohibited in its entirety?

(4)      Having regard to Article 10 of the [ECHR] and the case-law of the European Court of Human Rights, is Article 11 of the Charter of Fundamental Rights of the European Union, particularly the principle of pluralism of the media, to be interpreted as meaning that it precludes a national provision such as that described in Questions 1, 2 and 3?’

Decision

Article 4(1) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (‘the Audiovisual Media Services Directive’) and Article 11 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which prohibits television broadcasters from inserting in their programmes broadcast throughout the national territory television advertising whose broadcasting is limited to a regional level;

Article 56 TFEU must be interpreted as not precluding such national legislation, provided that it is suitable for securing the attainment of the objective of protecting media pluralism at regional and local level which it pursues and does not go beyond what is necessary to attain that objective, which it is for the referring court to ascertain;

Article 20 of the Charter of Fundamental Rights must be interpreted as not precluding such national legislation, provided that it does not give rise to unequal treatment between national television broadcasters and internet advertising providers as regards the broadcasting of advertising at regional level, which it is for the referring court to ascertain.

Case number

C-223/19

Case name

YS (Occupational pensions for managerial staff)

Document

Judgment ECLI:EU:C:2020:753

Date

24/09/2020

Source of the question referred for a preliminary ruling

Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court, Austria)

Name of the parties

YS v NK AG

Subject matter

Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018

Key words

Equal treatment in employment and occupation - Directives 2000/78/EC and 2006/54/EC - Scope - Prohibition of indirect discrimination on grounds of age or sex - Justifications - National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions - Charter of Fundamental Rights of the European Union - Applicability - Discrimination on grounds of property - Infringement of the freedom of contract - Infringement of the right to property - Article 47 of the Charter of Fundamental Rights - Right to an effective remedy

Question referred for a preliminary ruling

‘1.      Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives?

2.      Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened?

3.      Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]?

4.      Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination?

5.      Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions?

6.      Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties?

7.      Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property?

8.      Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’

Decision

1.      Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective.

2.      Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify.

3.      Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age.

4.      Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension.

5.      Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free-standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly.

Case number

C-113/19

Case name

Luxaviation

Document

Order ECLI:EU:C:2020:228

Date

26/03/2020

Source of the question referred for a preliminary ruling

Cour administrative (Higher Administrative Court, Luxembourg)

Name of the parties

Luxaviation SA v Ministre de l'Environnement

Subject matter

Environment; pollution; equality before the law; surrender of 2015 CO2 emission allowances

Key words

Luxaviation - Environment - Scheme for greenhouse gas emission allowance trading - Directive 2003/87/EC - Penalty for excess emissions - No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure - No possibility of varying the amount of the penalty - Proportionality - Charter of Fundamental Rights of the European Union - Principle of the protection of legitimate expectations)

Question referred for a preliminary ruling

‘(1)      Is Article 12(3) of Directive 2003/87, which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level?

(2)      (a)      Should it be considered that an incomplete allowance surrender operation, like the one in the present case, in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87?

(b)      Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year?

(c)      In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87?

(3)      (a)      Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat-rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator?

(b)      If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle “fraus omnia corrumpit” be interpreted as precluding - as regards the flat-rate penalty to be imposed pursuant to Article 16(3) of Directive 2003/87, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added - an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently?

(c)      If the answer to the previous question is in the negative, is the application of the flat-rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter, which guarantees the existence of an effective remedy?

(d)      If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Article 47 and Article 49(3) of the Charter?

(e)      Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court of the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the [Court] and the national Supreme Courts under the influence of a pre-determined solution endorsed by the [Court], except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue?

(4)      Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat-rate penalty provided for in Article 16(3) of Directive 2003/87 [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitute a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy?’

Decision

1.      Articles 20 and 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, to be varied by a national court.

2.      Article 41 of the Charter of Fundamental Rights of the European Union must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87, as amended by Directive 2009/29.

3.      The principle of the protection of legitimate expectations must be interpreted as not precluding the imposition of the penalty provided for in Article 16(3) of Directive 2003/87, as amended by Directive 2009/29, in a situation where the competent authorities did not warn the operator prior to the expiry of the time limit for surrender, whereas they had done so, without being obliged to, the previous year.

4.      It is for the referring court to assess whether the concept of ‘circumstances constituting force majeure’, within the meaning of paragraph 31 of the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C‑203/12, EU:C:2013:664), applies to a situation such as that at issue in the main proceedings.

Case number

C-634/18

Case name

Prokuratura Rejonowa w Słupsku

Document

Judgment ECLI:EU:C:2020:455

Date

11/06/2020

Source of the question referred for a preliminary ruling

Sąd Rejonowy w Słupsku (Higher Administrative Court, Luxembourg)

Name of the parties

JI, interested party Prokuratura Rejonowa w Słupsku

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal matters; drugs

Key words

JI - Environment - Scheme for greenhouse gas emission allowance trading - Directive 2003/87/EC - Penalty for excess emissions - No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure - No possibility of varying the amount of the penalty - Proportionality - Charter of Fundamental Rights of the European Union - Principle of the protection of legitimate expectations

Question referred for a preliminary ruling

‘(1)      Must the rule of EU law contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, be interpreted as meaning that that rule does not preclude the expression “a significant quantity of drugs” from being interpreted on a case-by-case basis as part of the individual assessment of a national court, and that that assessment does not require the application of any objective criterion, in particular that it does not require a finding that the offender possesses drugs for the purpose of performing acts covered by Article 4(2)(a) of that framework decision, that is to say production, offering, offering for sale, distribution, brokerage, or delivery on any terms whatsoever?

(2)      In so far as the [Law of on combating drug addiction] contains no precise definition of “a significant quantity of drugs” and leaves the interpretation thereof to the bench adjudicating in a specific case in the exercise of its “judicial discretion”, are the judicial remedies necessary to ensure the effectiveness and efficiency of the rules of EU law contained in [Framework Decision 2004/757], and in particular Article 4(2)(a) of that framework decision, read in conjunction with Article 2(1)(c) thereof, sufficient to afford Polish citizens effective protection resulting from the rules of EU law laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking?

(3)      Is the rule of national law contained in Article 62(2) of the [Law on combating drug addiction] compatible with EU law, and in particular [with the rule] contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, and, if so, is the interpretation which the national Polish courts place on the expression “a significant quantity of psychotropic substances and narcotic drugs” contrary to the rule of EU law pursuant to which a person who has committed the offence of possessing large quantities of drugs to perform activities covered by Article 2(1)(c) of [Framework Decision 2004/757] is to be subject to stricter criminal liability?

(4)      Is Article 62(2) of the [Law on combating drug addiction], which lays down stricter criminal liability for the offence of possessing a significant quantity of psychotropic substances and narcotic drugs, as interpreted by the Polish national courts, contrary to the principles of equality and non-discrimination (Article 14 [of the ECHR] and Articles 20 and 21 [of the Charter], read in conjunction with Article 6(1) [TEU])?’

Decision

Article 4(2)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a Member State from classifying as a criminal offence the possession of a significant quantity of narcotic drugs or psychotropic substances both for personal consumption and for the purposes of illicit drug trafficking, while leaving the interpretation of the concept of ‘significant quantity of narcotic drugs or psychotropic substances’ to the discretion of the national courts, on a case-by-case basis, provided that that interpretation is reasonably foreseeable.

Case number

C-406/15

Case name

Milkova

Document

Judgment ECLI:EU:C:2017:198

Date

09/03/2017

Source of the question referred for a preliminary ruling

Varhoven administrativen sad (Supreme Administrative Court, Bulgaria)

Name of the parties

Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol

Subject matter

Employment and social policy; equal treatment; disability rights

Key words

Milkova - Social policy - Equal treatment in employment and occupation - United Nations Convention on the Rights of Persons with Disabilities - Directive 2000/78/EC - Enhanced protection in the event of dismissal of employees with disabilities - No such protection for civil servants with disabilities - General principal of equal treatment

Question referred for a preliminary ruling

‘(1)      Does Article 5(2) of the UN Convention … allow legislation whereby Member States provide specific advance protection in the event of dismissal of employees with disabilities, but not of civil servants with the same disabilities?

(2)      Does Article 4, along with the other provisions of Directive [2000/78], permit a legal framework conferring specific advance protection in the event of dismissal of employees with disabilities, but not of civil servants with the same disabilities?

(3)      Does Article 7 of Directive 2000/78 permit employees with disabilities, but not civil servants with the same disabilities, to be afforded specific advance protection in the event of dismissal?

(4)      If the first and third questions are answered in the negative, is it necessary, in the light of the facts and circumstances of the present case, in order to comply with the provisions of international and Community law, that the specific advance protection in the event of dismissal of employees with disabilities provided for by the national legislator should also be applied to civil servants with the same disabilities?’

Decision

1.      Article 7(2) of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009, and in conjunction with the general principle of equal treatment enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, must be construed as allowing legislation of a Member State, such as that at issue in the main proceedings, which confers on employees with certain disabilities specific advance protection in the event of dismissal, without conferring such protection on civil servants with the same disabilities, unless it has been established that there has been an infringement of the principle of equal treatment, that being a matter for the referring court to determine. When making that determination, the comparison of the situations must be based on an analysis focusing on all the relevant rules of national law governing the positions of employees with a particular disability, on the one hand, and the positions of civil servants with the same disability, on the other, having regard, in particular, to the purpose of the protection against dismissal at issue in the main proceedings.

2.      In the event that Article 7(2) of Directive 2000/78, read in the light of the United Nations Convention on the Rights of Persons with Disabilities and in conjunction with the general principle of equal treatment, precludes legislation of a Member State such as that at issue in the main proceedings, the obligation to comply with EU law would require that the scope of the national rules protecting employees with a particular disability should be extended, so that those protective rules also benefit civil servants with the same disability.

Case number

C-438/14

Case name

Bogendorff von Wolffersdorff

Document

Judgment ECLI:EU:C:2016:401

Date

02/06/2016

Source of the question referred for a preliminary ruling

Amtsgericht Karlsruhe (Local Court, Karlsruhe, Germany)

Name of the parties

Nabiel Peter Bogendorff von Wolffersdorff v Standesamt der Stadt Karlsruhe and Zentraler Juristischer Dienst der Stadt Karlsruhe

Subject matter

Prohibition of discrimination and citizenship of the Union; Right of entry and residence; restrictions justified on grounds of public policy, public security and public health; refusal of entry in the civil status register

Key words

Wolffersdorff - Citizenship of the Union - Freedom to move and reside in the Member States - Law of a Member State abolishing privileges and prohibiting the conferring of new noble titles - Surname of an adult, national of that State, obtained during a habitual residence in another Member State of which that person also holds the nationality - Name comprising tokens of nobility - Residence in the first Member State - Refusal by the authorities of the first Member State to enter the name acquired in the second Member State in the register of civil status - Justification - Public policy - Incompatibility with the essential principles of German law

Question referred for a preliminary ruling

‘Are Articles 18 TFEU and 21 TFEU to be interpreted as meaning that the authorities of a Member State are obliged to recognise the change of name of a national of that State if he is at the same time a national of another Member State and has acquired in that Member State, during habitual residence, by means of a change of name not associated with a change of family law status, a freely chosen name including several tokens of nobility, where it is possible that a future substantial link with that State does not exist and in the first Member State the nobility has been abolished by constitutional law but the titles of nobility used at the time of abolition may continue to be used as part of a name?’

Decision

Article 21 TFEU must be interpreted as meaning that the authorities of a Member State are not bound to recognise the name of a citizen of that Member State when he also holds the nationality of another Member State in which he has acquired that name which he has chosen freely and which contains a number of tokens of nobility, which are not accepted by the law of the first Member State, provided that it is established, which it is for the referring court to ascertain, that a refusal of recognition is, in that context, justified on public policy grounds, in that it is appropriate and necessary to ensure compliance with the principle that all citizens of that Member State are equal before the law.

Case number

C-3/13

Case name

Baltic Agro

Document

Judgment ECLI:EU:C:2014:2227

Date

17/09/2014

Source of the question referred for a preliminary ruling

Tartu ringkonnakohus (Estonia) 

Name of the parties

Baltic Agro AS v Maksu- ja Tolliameti Ida maksu- ja tollikeskus

Subject matter

External relations; trade policy; dumping goods - Customs Union; import and export procedures

Key words

Baltic Agro - Dumping - Regulation (EC) No 661/2008 - Definitive anti-dumping duty on imports of ammonium nitrate originating in Russia - Conditions for exemption - First independent customer in the European Union - Acquisition of ammonium nitrate fertiliser through another company - Release of the goods - Application for invalidation of the customs declaration - Decision 2008/577/EC - Customs Code - Error - Regulation (EEC) No 2454/93 - Post-release verification

Question referred for a preliminary ruling

1.      Is Article 3(1) of … Regulation … No 661/2008] to be interpreted as meaning that the importer and the first independent customer in the [Union] must always be one and the same person?

2.      Is Article 3(1) of … Regulation … No 661/2008, in conjunction with … Decision 2008/577 …, to be interpreted as meaning that exemption from anti-dumping duty applies only to such first independent customer in the [Union] as has not resold the goods to be declared prior to making the declaration?

3.      Is Article 66 of the Community Customs Code …, in conjunction with Article 251 of … Regulation … No 2454/93 and the other procedural rules relating to subsequent amendments to a customs declaration, to be interpreted as meaning that, where the wrong consignee is entered in a customs declaration on the importation of goods, it must be possible, on request, for the declaration to be invalidated and the consignee’s details to be corrected even after the goods have been released if the customs duty exemption provided for in Article 3(1) of … Regulation … No 661/2008 would have had to be applied if the correct consignee had been entered, or is Article 220(2)(b) of the Community Customs Code … to be interpreted, in those circumstances, as meaning that the customs authorities are not entitled to make a subsequent entry in the accounts?

4.      If both of the alternatives in Question (3) should be answered in the negative, must it be considered compatible with Article 20 of the Charter …, in conjunction with Article 28(1) TFEU and Article 31 TFEU, for Article 66 of the Community Customs Code …, in conjunction with Article 251 of … Regulation … No 2454/93 and the other procedural rules relating to subsequent amendments to a customs declaration, not to permit a declaration to be invalidated and the consignee’s details to be corrected, on request, after the goods have been released, if the customs duty exemption provided for in Article 3(1) of … Regulation … No 661/2008 would have had to be applied if the correct consignee had been entered?’

Decision

1.      Article 3(1) of Regulation (EC) No 661/2008 of 8 July 2008, imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96, must be interpreted as meaning that a company established in a Member State, which purchased ammonium nitrate originating in Russia, through another company also established in a Member State, with a view to importing it into the Union, may not be considered to be the first independent customer in the Union, within the meaning of that provision, and may not therefore be eligible for the exemption from definitive anti-dumping duty laid down by that regulation in respect of the ammonium nitrate.

2.      Articles 66 and 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006, of 20 November 2006, must be interpreted as not precluding a customs authority from making a subsequent entry in the accounts of anti-dumping duty when, as in the circumstances of the case in the main proceedings, the requests to invalidate the customs declarations were brought on the ground that the entry for the consignee was incorrect and that the authority had accepted those declarations or put in hand a verification exercise after receiving those requests.

3.      Article 66 of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Article 251 of Commission Regulation (EEC) No 2454/93 of 2 July 1993, laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 312/2009, of 16 April 2009 are compatible with the fundamental right to equality before the law affirmed in Article 20 of the Charter in circumstances where, in the context of the common customs tariff, referred to in Articles 28 TFEU and 31 TFEU, those provisions of the Customs Code and of Regulation No 2454/93 do not permit the invalidation, on request, of an incorrect customs declaration and thus the grant of the benefit of the exemption from anti-dumping duty to the consignee that the latter could have claimed, if the error had not been made.

Case number

C-356/12

Case name

Glatzel

Document

Judgment ECLI:EU:C:2014:350

Date

22/05/2014

Source of the question referred for a preliminary ruling

Bayerischer Verwaltungsgerichtshof (Germany)

Name of the parties

Wolfgang Glatzel v Freistaat Bayern

Subject matter

Transport; Community driving licence - Fundamental rights; inclusion of people with disabilities; visual acuity

Key words

 Glatzel - Transport - Directive 2006/126/EC - Validity - Charter of Fundamental Rights of the European Union - United Nations Convention on the Rights of Persons with Disabilities - Driving licences - Physical and mental fitness to drive a motor vehicle - Minimum standards - Visual acuity - Equal treatment - No possibility of derogation - Proportionality

Question referred for a preliminary ruling

‘Is point 6.4 of Annex III to [Directive 2006/126] compatible with Article 20, Article 21(1) and Article 26 of the [Charter] in so far as that provision requires - without permitting any derogation - that applicants for Category C1 and Category C1E driving licences have a minimum visual acuity of 0,1 in their worse eye even if those persons use both eyes together and have a normal field of vision when using both eyes?’

Decision

The examination of the question does not reveal any information capable of affecting the validity of point 6.4 of Annex III to Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences, as amended by Commission Directive 2009/113/EC of 25 August 2009 in the light of

Case number

C-195/12

Case name

IBV & Cie

Document

Judgment ECLI:EU:C:2013:598

Date

26/09/2013

Source of the question referred for a preliminary ruling

Cour constitutionnelle (Belgium)

Name of the parties

Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne

Subject matter

Environment; cogeneration; biomass energy

Key words

IBV - Scope - Cogeneration and high efficiency cogeneration -- Regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants - Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste - Principle of equality and non-discrimination - Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

1.      Must Article 7 of Directive [2004/8], in conjunction if appropriate with Articles 2 and 4 of Directive [2001/77] and with Article 22 of Directive [2009/28], be interpreted, in the light of the general principle of equal treatment, of Article 6 of the Treaty on European Union and of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union [(“the Charter”)],

(a)      as applying only to high efficiency cogeneration plants, within the meaning of Annex III to [Directive 2004/8];

(b)      as requiring, permitting or prohibiting the availability of a support measure such as that in Article 38(3) of the [2001 Decree] to all cogeneration plants principally using biomass and meeting the conditions laid down by that article, with the exception of cogeneration plants principally using wood or wood waste?

2.      Would the answer be different if the cogeneration plant principally uses only wood or, on the contrary, only wood waste?’

Decision

1.      Article 7 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC must be interpreted as meaning that its scope is not limited solely to cogeneration plants which are high efficiency cogeneration plants within the meaning of that directive.

2.      In the present state of European Union law, the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union does not preclude the Member States, when introducing national support schemes for cogeneration and electricity production from renewable energy sources, such as those referred to in Article 7 of Directive 2004/8 and Article 4 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, from providing for an enhanced support measure such as that at issue in the main proceedings capable of benefiting all cogeneration plants principally using biomass with the exclusion of cogeneration plants principally using wood and/or wood waste.

Case number

C-21/10

Case name

Nagy

Document

Judgment ECLI:EU:C:2011:505

Date

21/07/2011

Source of the question referred for a preliminary ruling

Fővárosi Bíróság (Hungary)

Name of the parties

Károly Nagy v Mezőgazdasági és Vidékfejlesztési Hivatal

Subject matter

Agriculture and fisheries; European Agricultural Guidance and Guarantee Fund (EAGGF); rejection of agri-environmental aid

Key words

Nagy - Common agricultural policy - EAGGF financing - Regulations (EC) No 1257/1999 and (EC) No 817/2004 - Community support for rural development - Support for agri-environmental production methods - Agri-environmental aid other than ‘livestock’ aid, the grant of which is conditional upon a certain density of livestock - Application of the integrated administration and control system - System for the identification and registration of bovine animals - Duty of national authorities to provide information on the conditions for eligibility

Question referred for a preliminary ruling

‘1.      May Articles 22 of Regulation [No 1257/1999] and 68 of Regulation [No 817/2004] be interpreted as meaning that, in the case of specific programmes for grassland by way of agri-environmental aid under the first article mentioned, the checks on the data contained in the ENAR …, pursuant to Article 68 of Regulation [No 817/2004], must also be extended to area aid specifying a certain density of livestock?

2.      May the above provisions be interpreted as meaning that cross-checks under the integrated administration and control system must be carried out also in cases where the pre-condition for aid is the density of livestock, although the aid is not for animals?

3.      May those provisions be interpreted as meaning that, in assessing area aid, the competent authority may or must check whether the conditions for aid are met, independently of the ENAR?

4.      On the basis of the interpretation of the above provisions, what monitoring obligation arises for the competent authority from the requirement in the above Community provisions for checks and cross-checks? May the monitoring be limited exclusively to review of the data contained in the ENAR?

5.      Do those provisions impose an obligation on the national authority to provide information concerning the pre-conditions for aid (for example, registration in the ENAR)? If so, in what way and to what extent?’

Decision

1.      As regards the aid based on Article 22 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, as amended by Council Regulation (EC) No 1783/2003 of 29 September 2003, which is subject to a condition relating to the density of livestock, it is permissible under that provision and Article 68 of Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 for the competent authorities to carry out cross-checks with the data from the integrated administration and control system and, in particular, to rely on the data held in the database of a national system for the individual identification and registration of bovine animals, such as the Hungarian system for the individual identification and registration of bovine animals (Egységes Nyilvántartási és Azonosítási Rendszer).

2.      It is permissible under Article 22 of Regulation No 1257/1999, as amended, and Article 68 of Regulation No 817/2004 for the competent authorities, when verifying compliance with the conditions governing eligibility for agri-environmental aid under the former provision, to check only the data held in the database of a national system for the individual identification and registration of bovine animals, such as the Hungarian system for the individual identification and registration of bovine animals, in order to refuse that aid, without necessarily having to carry out other checks.

3.      Article 22 of Regulation No 1257/1999, as amended, and Article 68 of Regulation No 817/2004, interpreted in the light of Article 16 of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Regulation No 1782/2003, place the national authorities - to the extent that, for the purposes of verifying compliance with the conditions governing eligibility for agri-environmental aid under the former provision, which is subject to a condition relating to density of livestock, those authorities check only the data in a national system for the individual identification and registration of bovine animals, such as the Hungarian system for the individual identification and registration of bovine animals - under an obligation to provide information concerning those eligibility conditions which consists in informing the farmer concerned that any animals found not to be correctly identified or registered in that national system are to count as animals found with irregularities liable to have legal consequences, such as a reduction in or exclusion from the aid concerned.

Case number

C-94/20

Case name

Land Oberösterreich (Aide au logement)

Document

Judgment ECLI:EU:C:2021:477

Date

10/06/2021

Source of the question referred for a preliminary ruling

Landesgericht Linz (Regional Court, Linz, Austria)

Name of the parties

Land Oberösterreich v KV

Subject matter

Area of freedom, security and justice; asylum policy; border control - Non-discrimination and citizenship of the Union - Social security and social assistance; refusal to grant housing assistance

Key words

KV - Directive 2003/109/EC - Status of third-country nationals who are long-term residents - Right to equal treatment as regards social security, social assistance and social protection - Derogation from the principle of equal treatment in respect of social assistance and social protection - Concept of ‘core benefits’ - Directive 2000/43/EC - Principle of equal treatment between persons irrespective of racial or ethnic origin - Concept of discrimination -Charter of Fundamental Rights of the European Union - Legislation of a Member State subjecting the grant of housing assistance to third-country nationals who are long-term residents to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State

Question referred for a preliminary ruling

(1)      Is Article 11 of [Directive 2003/109] to be interpreted as precluding national legislation, such as Paragraph 6(9) and (11) of the [oöWFG], which allows EU citizens, EEA nationals and family members within the meaning of [Directive 2004/38] to receive a social benefit in the form of housing assistance without proof of language proficiency, while requiring third-country nationals with long-term resident status within the meaning of [Directive 2003/109] to provide particular proof of a basic command of German, where that housing assistance is intended to absorb unreasonable burdens in the form of housing costs even though minimum subsistence levels (including the need for housing) should also be ensured by way of another social benefit (needs-based guaranteed minimum benefits in accordance with the [oöBMSG]) for individuals suffering social hardship?

(2)      Is the prohibition of direct or indirect discrimination based on “racial or ethnic origin” in accordance with Article 2 of [Directive 2000/43] to be interpreted as precluding national legislation, such as Paragraph 6(9) and (11) of the oöWFG, which allows EU citizens, EEA nationals and family members within the meaning of [Directive 2004/38] to receive a social benefit (housing assistance in accordance with the oöWFG) without proof of language proficiency, while requiring third-country nationals (including those with long-term resident status within the meaning of [Directive 2003/109]) to provide particular proof of a basic command of German?

(3)      If the answer to Question 2 is in the negative:

Is the principle of non-discrimination on grounds of ethnic origin in accordance with Article 21 of the [Charter] to be interpreted as precluding national legislation such as Paragraph 6(9) and (11) of the oöWFG, which allows EU citizens, EEA nationals and family members within the meaning of [Directive 2004/38] to receive a social benefit (housing assistance in accordance with the oöWFG) without proof of language proficiency, while requiring third-country nationals (including those with long-term resident status within the meaning of [Directive 2003/109]) to provide particular proof of a basic command of German?’

Decision

1.      Article 11(1)(d) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as precluding, even where use has been made of the option to apply the derogation provided for in Article 11(4) of that directive, legislation of a Member State under which the grant of housing assistance to third-country nationals who are long-term residents is subject to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State, if that housing assistance constitutes a ‘core benefit’ within the meaning of that latter provision, this being a matter for the referring court to assess.

2.      Legislation of a Member State which is applicable to all third-country nationals without distinction and under which the grant of housing assistance to third-country nationals who are long-term residents is subject to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State does not come within the scope of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

3.      Where use has been made of the option to apply the derogation provided for in Article 11(4) of Directive 2003/109, Article 21 of the Charter of Fundamental Rights of the European Union is not intended to apply to legislation of a Member State under which the grant of housing assistance to third-country nationals who are long-term residents is subject to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State, if that housing assistance does not constitute a ‘core benefit’ within the meaning of Article 11(4) of that directive. If the housing assistance in question does constitute such a core benefit, Article 21 of the Charter of Fundamental Rights, in so far as it prohibits any discrimination based on ethnic origin, does not preclude such legislation.

Case number

C-824/19

Case name

Komisia za zashtita ot diskriminatsia

Document

Judgment ECLI:EU:C:2021:862

Date

21/10/2021

Source of the question referred for a preliminary ruling

Varhoven administrativen sad (Supreme Administrative Court, Bulgaria)

Name of the parties

TC and UB v Komisia za zashtita ot diskriminatsia and VA

Subject matter

Employment and social policy; discrimination on grounds of disability

Key words

TC in UB - Social policy - Equal treatment in employment and occupation - Directive 2000/78/EC - Prohibition of discrimination on grounds of disability - Charter of Fundamental Rights of the European Union - United Nations Convention on the Rights of Persons with Disabilities - Duties of juror in criminal proceedings - Blind person - Total exclusion from participation in criminal proceedings

Question referred for a preliminary ruling

‘(1)      Does the interpretation of Article 5(2) of the [UN Convention] and of Article [2](1), (2) and (3) and Article 4(1) of [Directive 2000/78] lead to the conclusion that it is permissible for a person without the ability to see to be able to work as a juror and participate in criminal proceedings, or:

(2)      Is the specific disability of a permanently blind person a characteristic which constitutes a genuine and determining requirement of the activity of a juror, the existence of which justifies a difference of treatment and does not constitute discrimination based on the characteristic of “disability”?’

Decision

Article 2(2)(a) and Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of Articles 21 and 26 of the Charter of Fundamental Rights of the European Union and of the United Nations Convention on the Rights of Persons with Disabilities, approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009, must be interpreted as meaning that they preclude that a blind person be totally deprived of any possibility of performing the duties of a juror in criminal proceedings.

Case number

C-817/19

Case name

Ligue des droits humains

Document

Judgment ECLI:EU:C:2022:491

Date

21/06/2022

Source of the question referred for a preliminary ruling

Cour constitutionnelle (Belgium)

Name of the parties

Ligue des droits humains ASBL v Conseil des ministres

Subject matter

Protection of personal data - Area of freedom, security and justice; judicial cooperation in civil matters; use of Passenger Name Record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime - Asylum policy - Transport

Key words

Ligue - Processing of personal data - Passenger Name Record (PNR) data - Regulation (EU) 2016/679  - Directive (EU) 2016/681 - Use of PNR data of air passengers of flights operated between the European Union and third countries - Power to include data of air passengers of flights operated within the European Union - Automated processing of those data - Retention period - Fight against terrorist offences and serious crime - Validity - Charter of Fundamental Rights of the European Union -National legislation extending the application of the PNR system to other transport operations within the European Union - Freedom of movement within the European Union

Question referred for a preliminary ruling

‘(1)      Is Article 23 of [the GDPR], read in conjunction with Article 2(2)(d) of that regulation, to be interpreted as applying to national legislation such as the [Law of 25 December 2016], which transposes [the PNR Directive] as well as [the API Directive] and Directive [2010/65]?

(2)      Is Annex I to [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that the data it refers to are very wide in scope - particularly the data referred to in paragraph 18 of Annex I to [that directive], which go beyond the data referred to in Article 3(2) of [the API Directive] - and also given that, taken together, they may reveal sensitive information, and thus go beyond what is “strictly necessary”?

(3)      Are paragraphs 12 and 18 of Annex I to [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that, having regard to the word “including”, the data referred to in those paragraphs are given by way of example and not exhaustively, such that the requirement for precision and clarity in rules which interfere with the right to respect for private life and the right to protection of personal data is not satisfied?

(4)      Are Article 3(4) of [the PNR Directive] and Annex I to that directive compatible with Articles 7, 8 and 52(1) of [the Charter], given that the system of generalised collection, transfer and processing of passenger data established by those provisions relates to any person using the mode of transport concerned, regardless of whether there is any objective ground for considering that that person may present a risk to public security?

(5)      Is Article 6 of [the PNR Directive], read in conjunction with Articles 7, 8 and 52(1) of [the Charter], to be interpreted as precluding national legislation such as the contested law, which includes, among the purposes for which PNR data are processed, [monitoring] activities within the remit of the intelligence and security services, thus treating that purpose as an integral part of the prevention, detection, investigation and prosecution of terrorist offences and serious crime?

(6)      Is Article 6 of [the PNR Directive] compatible with Articles 7, 8 and 52(1) of [the Charter], given that the advance assessment for which it provides, which is made by comparing passenger data against databases and pre-determined criteria, applies to such data in a systematic and generalised manner, regardless of whether there is any objective ground for considering that the passengers concerned may present a risk to public security?

(7)      Can the expression “another national authority competent under national law” in Article 12(3) of [the PNR Directive] be interpreted as including the PIU created by the Law of 25 December 2016, which would then have power to authorise access to PNR data after six months had passed, for the purposes of ad hoc searches?

(8)      Is Article 12 of [the PNR Directive], read in conjunction with Articles 7, 8 and 52(1) of [the Charter], to be interpreted as precluding national legislation such as the contested law which provides for a general data retention period of five years, without making any distinction in terms of whether the advance assessment indicated that the passengers might present a risk to public security?

(9)      (a)      Is [the API Directive] compatible with Article 3(2) [TEU] and Article 45 of [the Charter], given that the obligations for which it provides apply to flights within the European Union?

(b)      Is [the API Directive], read in conjunction with Article 3(2) [TEU] and Article 45 of [the Charter], to be interpreted as precluding national legislation such as the contested law which, for the purposes of combating illegal immigration and improving border controls, authorises a system of collection and processing of data relating to passengers “travelling to, from or transiting through Belgian territory”, which may indirectly involve a re-establishment of internal border controls?

(10)      If, on the basis of the answers to the preceding questions, the Cour constitutionnelle (Constitutional Court) concludes that the contested law, which transposes, inter alia, [the PNR Directive], fails to fulfil one or more of the obligations arising under the provisions referred to in those questions, would it be open to it to maintain the effects of the [Law of 25 December 2016], on a temporary basis, in order to avoid legal uncertainty and enable the data hitherto collected and retained to continue to be used for the purposes envisaged by the law?’

Decision

1.      Article 2(2)(d) and Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the processing of personal data envisaged by national legislation intended to transpose, into domestic law, the provisions of Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, those of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States and repealing Directive 2002/6/EC and also those of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, in respect of, on the one hand, data processing operations carried out by private operators and, on the other hand, data processing operations carried out by public authorities covered, solely or in addition, by Directive 2004/82 or Directive 2010/65. By contrast, the said regulation does not apply to the data processing operations envisaged by such legislation which are covered only by Directive 2016/681 and are carried out by the passenger information unit (PIU) or by the authorities competent for the purposes referred to in Article 1(2) of that directive.

2.      Given that an interpretation of Directive 2016/681 in the light of Articles 7, 8 and 21 as well as Article 52(1) of the Charter of Fundamental Rights of the European Union ensures that that directive is consistent with those articles of the Charter of Fundamental Rights, the examination of Questions 2 to 4 and Question 6 referred for a preliminary ruling has revealed nothing capable of affecting the validity of the said directive.

3.      Article 6 of Directive 2016/681, read in the light of Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which authorises passenger name record (PNR) data collected in accordance with that directive to be processed for purposes other than those expressly referred to in Article 1(2) of the said directive.

4.      Article 12(3)(b) of Directive 2016/681 must be interpreted as precluding national legislation pursuant to which the authority put in place as the passenger information unit (PIU) is also designated as a competent national authority with power to approve the disclosure of PNR data upon expiry of the period of six months after the transfer of those data to the PIU.

5.      Article 12(1) of Directive 2016/681, read in conjunction with Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which provides for a general retention period of five years for PNR data, applicable indiscriminately to all air passengers, including those for whom neither the advance assessment under Article 6(2)(a) of that directive nor any verification carried out during the period of six months referred to in Article 12(2) of the said directive nor any other circumstance have revealed the existence of objective material capable of establishing a risk that relates to terrorist offences or serious crime having an objective link, even if only an indirect one, with the carriage of passengers by air.

6.      Directive 2004/82 must be interpreted as not applying to flights, whether scheduled or non-scheduled, carried out by an air carrier flying from the territory of a Member State and that are planned to land on the territory of one or more of the other Member States, without any stop-overs in the territory of a third country (intra-EU flights).

7.      EU law, in particular Article 2 of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU and Article 45 of the Charter of Fundamental Rights, must be interpreted as precluding:

-        national legislation which, in the absence of a genuine and present or foreseeable terrorist threat with which the Member State concerned is confronted, establishes a system for the transfer, by air carriers and tour operators, as well as for the processing, by the competent authorities, of the PNR data of all intra-EU flights and transport operations carried out by other means within the European Union, departing from, going to or transiting through that Member State, for the purposes of combating terrorist offences and serious crime. In such a situation, the application of the system established by Directive 2016/681 must be limited to the transfer and processing of the PNR data of flights and/or transport operations relating, inter alia, to certain routes or travel patterns or to certain airports, stations or seaports for which there are indications that are such as to justify that application. It is for the Member State concerned to select the intra-EU flights and/or the transport operations carried out by other means within the European Union for which there are such indications and to review regularly that application in accordance with changes in the circumstances that justified their selection, for the purposes of ensuring that the application of that system to those flights and/or those transport operations continues to be limited to what is strictly necessary, and

-        national legislation providing for such a system for the transfer and processing of those data for the purposes of improving external border controls and combating illegal immigration.

8.      EU law must be interpreted as precluding a national court from limiting the temporal effects of a declaration of illegality which it is bound to make under national law in respect of national legislation requiring carriers by air, by rail and by road as well as tour operators to transfer PNR data, and providing for the processing and retention of those data, in breach of the provisions of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU, Articles 7, 8 and 45 as well as Article 52(1) of the Charter of Fundamental Rights. The admissibility of the evidence thus obtained is, in accordance with the principle of procedural autonomy of the Member States, a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness.

Case number

C-402/19

Case name

CPAS de Seraing

Document

Judgment ECLI:EU:C:2020:759

Date

30/09/2020

Source of the question referred for a preliminary ruling

Cour du Travail de Liège (Higher Labour Court, Liège, Belgium)

Name of the parties

LM v Centre public d'action sociale de Seraing

Subject matter

Area of freedom, security and justice; asylum policy, border control; social assistance withdrawn

Key words

LM - CPAS - Area of freedom, security and justice - Directive 2008/115/CE - Return of illegally staying third-country nationals - Parent of an adult child suffering from a serious illness - Return decision - Judicial remedy - Automatic suspensory effect - Safeguards pending return - Basic needs - Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘Does point 1 of the first subparagraph of Article 57(2) of the Organic Law of 8 July 1976 on public social welfare centres infringe Articles 5 and 13 of Directive 2008/115/EC, read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union, and Article 14(1)(b) of that directive and Articles 7 and 12 of the Charter of Fundamental Rights of the European Union as interpreted by … the judgment [of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453)]:

-        first, in so far as it results in depriving a third-country national, staying illegally on the territory of a Member State, of provision, in so far as possible, for his basic needs pending resolution of the action for suspension and annulment that he has brought in his own name as the representative of his child, who was at that time a minor, against a decision ordering them to leave the territory of a Member State;

-        where, second, on the one hand, that child who has now come of age suffers from a serious illness and the enforcement of that decision may expose that child to a serious risk of grave and irreversible deterioration in her state of health and, on the other, the presence of that parent alongside his daughter who has now come of age is considered to be imperative by the medical professional given that she is particularly vulnerable as a result of her state of health (recurrent sickle cell crises and the need for surgery in order to prevent paralysis)?’

Decision

Articles 5, 13 and 14 of Directive 2008/115 of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in the light of Article 7, Article 19(2) and Articles 21 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which does not provide, as far as possible, for the basic needs of a third-country national to be met where:

-        that national has appealed against a return decision made in respect of him or her;

-        the adult child of that third-country national is suffering from a serious illness;

-        the presence of that third-country national with that adult child is essential;

-        an appeal was brought on behalf of that adult child against a return decision taken against him or her, the enforcement of which may expose that adult child to a serious risk of grave and irreversible deterioration in his or her state of health, and

-        that third-country national does not have the means to meet his or her needs himself or herself.

Case number

C-243/19

Case name

Veselības ministrija

Document

Judgment ECLI:EU:C:2020:872

Date

29/10/2020

Source of the question referred for a preliminary ruling

Augstākās tiesa (Senāts) (Supreme Court, Latvia)

Name of the parties

A v Veselības ministrija

Subject matter

Social security; public health; hospital treatment

Key words

A - Social security - Regulation (EC) No 883/2004 - Directive 2011/24/EU - Health insurance - Hospital care provided in a Member State other than the Member State of affiliation - Refusal of prior authorisation - Hospital treatment which can be provided effectively in the Member State of - Difference in treatment based on religion

Question referred for a preliminary ruling

‘(1)      Must Article 20(2) of [Regulation No 883/2004], in conjunction with Article 21(1) of the [Charter], be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of residence, even though the method of treatment used is contrary to that person’s religious beliefs?

(2)      Must Article 56 TFEU and Article 8(5) of Directive [2011/24], in conjunction with Article 21(1) of the [Charter], be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 8(1) of that directive where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs?’

Decision

1.      Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the insured person’s Member State of residence from refusing to grant that person the authorisation provided for in Article 20(1) of that regulation, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that person’s religious beliefs.

2.      Article 8(5) and (6)(d) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.

Case number

C-223/19

Case name

YS (Occupational pensions for management staff)

Document

Judgment ECLI:EU:C:2020:753

Date

24/09/2020

Source of the question referred for a preliminary ruling

Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court, Austria)

Name of the parties

YS v NK AG

Subject matter

Employment and social policy; equal treatment in employment and occupation; deduction of the amount from the occupational pension paid by and the contractually agreed valorisation of the occupational pension for 2018

Key words

YS - Equal treatment in employment and occupation - Directives 2000/78/EC and 2006/54/EC -Prohibition of indirect discrimination on grounds of age or sex - Justifications - National legislation providing for an amount to be withheld from pensions paid directly to their recipients by undertakings in which the State has a majority participation and for the cancellation of the indexation of the amount of those pensions - Applicability - Discrimination on grounds of property - Infringement of the freedom of contract - Infringement of the right to property - Right to an effective remedy

Question referred for a preliminary ruling

‘1.      Does the scope of [Directive 79/7/EEC] and/or of [Directive 2006/54] include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives?

2.      Does the scope of [Directive 2000/78] include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a ‘direct defined benefit pension’, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened?

3.      Are the provisions of the [Charter], in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to [Directives 79/7, 2000/78 and 2006/54]?

4.      Are Article 20 et seq. [of the Charter] to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 [of the Charter] and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the [Charter] prohibit such forms of discrimination?

5.      Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 [of the Charter] if they cover only people with relatively large occupational pensions?

6.      Is Article 17 [of the Charter] to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a ‘direct defined benefit pension’ entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties?

7.      Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property?

8.      Is Article 47 [of the Charter] to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?’

Decision

1.      Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as meaning that the scope of those directives includes provisions of the law of a Member State pursuant to which (i) part of the amount of the occupational pension which the employer is contractually bound to pay directly to its former employee must be withheld at source by that employer and (ii) the contractually agreed indexation of the amount of that benefit is ineffective.

2.      Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 must be interpreted as not precluding legislation of a Member State pursuant to which the recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, even though the percentage of former workers the amount of whose occupational pension has been affected by that legislation is considerably higher among male former workers coming within the scope of that legislation than among female former workers coming within its scope, provided that those consequences are justified by objective factors wholly unrelated to any discrimination based on sex, which it is for the referring court to verify.

3.      Article 2(1) and (2)(b) of Directive 2000/78 must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension, on the sole ground that that legislation affects only recipients above a certain age.

4.      Articles 16, 17, 20 and 21 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding legislation of a Member State pursuant to which recipients of a pension that a State-controlled undertaking is contractually bound to pay them directly and that exceeds certain thresholds set in that legislation are deprived of (i) an amount withheld from the part of that pension exceeding one of those thresholds and (ii) the benefit of a contractually agreed indexation of that pension.

5.      Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a Member State’s failure to provide, in its legal system, for a free-standing legal remedy for, primarily, an examination of whether national provisions implementing that right are compatible with EU law, provided that it is possible for such examination to take place indirectly.

Case number

C-634/18

Case name

Prokuratura Rejonowa w Słupsku

Document

Judgment ECLI:EU:C:2020:455

Date

11/06/2020

Source of the question referred for a preliminary ruling

Sąd Rejonowy w Słupsku (District Court, Słupsk, Poland)

Name of the parties

JI, interested party Prokuratura Rejonowa w Słupsku

Subject matter

Area of freedom, security and justice; judicial cooperation in criminal matters; drugs

Key words

JI - Judicial cooperation in criminal matters - Framework Decision 2004/757/JHA - Minimum provisions on the constituent elements of criminal acts and penalties involving illicit drug trafficking - Concept of ‘large quantities of drugs’ - Charter of Fundamental Rights of the European Union - Equal treatment - Principle of legality of criminal offences and penalties

Question referred for a preliminary ruling

‘(1)      Must the rule of EU law contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, be interpreted as meaning that that rule does not preclude the expression “a significant quantity of drugs” from being interpreted on a case-by-case basis as part of the individual assessment of a national court, and that that assessment does not require the application of any objective criterion, in particular that it does not require a finding that the offender possesses drugs for the purpose of performing acts covered by Article 4(2)(a) of that framework decision, that is to say production, offering, offering for sale, distribution, brokerage, or delivery on any terms whatsoever?

(2)      In so far as the [Law of on combating drug addiction] contains no precise definition of “a significant quantity of drugs” and leaves the interpretation thereof to the bench adjudicating in a specific case in the exercise of its “judicial discretion”, are the judicial remedies necessary to ensure the effectiveness and efficiency of the rules of EU law contained in [Framework Decision 2004/757], and in particular Article 4(2)(a) of that framework decision, read in conjunction with Article 2(1)(c) thereof, sufficient to afford Polish citizens effective protection resulting from the rules of EU law laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking?

(3)      Is the rule of national law contained in Article 62(2) of the [Law on combating drug addiction] compatible with EU law, and in particular [with the rule] contained in Article 4(2)(a) of [Framework Decision 2004/757], read in conjunction with Article 2(1)(c) thereof, and, if so, is the interpretation which the national Polish courts place on the expression “a significant quantity of psychotropic substances and narcotic drugs” contrary to the rule of EU law pursuant to which a person who has committed the offence of possessing large quantities of drugs to perform activities covered by Article 2(1)(c) of [Framework Decision 2004/757] is to be subject to stricter criminal liability?

(4)      Is Article 62(2) of the [Law on combating drug addiction], which lays down stricter criminal liability for the offence of possessing a significant quantity of psychotropic substances and narcotic drugs, as interpreted by the Polish national courts, contrary to the principles of equality and non-discrimination (Article 14 [of the ECHR] and Articles 20 and 21 [of the Charter], read in conjunction with Article 6(1) [TEU])?’

Decision

Article 4(2)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a Member State from classifying as a criminal offence the possession of a significant quantity of narcotic drugs or psychotropic substances both for personal consumption and for the purposes of illicit drug trafficking, while leaving the interpretation of the concept of ‘significant quantity of narcotic drugs or psychotropic substances’ to the discretion of the national courts, on a case-by-case basis, provided that that interpretation is reasonably foreseeable.

Case number

C-396/17

Case name

Leitner

Document

Judgment ECLI:EU:C:2019:375

Date

08/05/2019

Source of the question referred for a preliminary ruling

Bundesverwaltungsgericht (Federal Administrative Court, Austria)

Name of the parties

Martin Leitner v Landespolizeidirektion Tirol

Subject matter

Employment and social policy; age discrimination; promotion and grading

Key words

Leitner - Social policy - Prohibition of all discrimination on grounds of age - Directive 2000/78/EC - Exclusion of professional experience acquired before the age of 18 - New system of remuneration and advancement - Maintaining a difference in treatment - Right to an effective remedy - Justifications

Question referred for a preliminary ruling

‘(1)      Is EU law, in particular Articles 1, 2 and 6 of [Directive 2000/78], in conjunction with Article 21 of the [Charter], to be interpreted as precluding national legislation that, for the purpose of eliminating discrimination against currently employed civil servants, establishes a transitional rule under which, on the basis of a “transition amount”, which is indeed calculated in money, but nevertheless corresponds to a certain grading that can be specifically allocated, the reclassification is effected from the previous biennial system to a new biennial system (that in and of itself is non-discriminatory for newly hired civil servants), such that age discrimination against currently employed civil servants still continues?

(2)      Is EU law, in particular Article 17 of [Directive 2000/78] and Article 47 of the [Charter], to be interpreted as precluding national legislation that prevents currently employed civil servants from having -- in accordance with the interpretation of Articles 9 and 16 of [that directive] in the judgment of 11 November 2014, Schmitzer (C‑530/13, EU:C:2014:2359) -- their remuneration status determined, in reliance on Article 2 of Directive 2000/78, as at the time prior to transition to the new system, in that it declares that the corresponding legal bases are no longer applicable retroactively to the date on which its historical original law entered into force and, in particular, that previous service periods completed before the age of 18 may not be accredited?

(3)      If Question 2 is answered in the affirmative:

Does the principle of primacy of EU law, affirmed, inter alia, in the judgment of the Court of Justice of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709) require that provisions applicable to currently employed civil servants at the time prior to transition, which have been retroactively repealed, must continue to be applied so that those civil servants can be retroactively classified in the old system in a non-discriminatory manner and are thus reclassified in the new remuneration system in a non-discriminatory manner?

(4)      Is EU law, in particular Articles 1, 2 and 6 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter, to be interpreted as precluding national legislation that eliminates existing age discrimination (with respect to the accreditation of previous service periods completed before the age of 18) in a merely declaratory manner by specifying that the periods actually completed under conditions of discrimination are retroactively to be considered no longer discriminatory even though discrimination in fact still continues?’

Decision

1.      Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which entered into force retroactively, and which, for the purpose of putting a stop to discrimination on grounds of age, provides for the transfer of currently employed civil servants to a new remuneration and advancement system under which the initial classification of those civil servants is determined on the basis of the last salary they received under the previous system.

2.      Article 47 of the Charter of Fundamental Rights of the European Union and Article 9 of Directive 2000/78 must be interpreted as precluding national legislation which, in a situation such as that at issue in the main proceedings, reduces the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the ‘transition amount’ calculated according to the rules of the previous remuneration and advancement system.

3.      In a situation where national provisions cannot be interpreted in a manner which is consistent with Directive 2000/78, the national court is obliged, within the scope of its powers, to guarantee the legal protection conferred on individuals by that directive and to guarantee that that protection is fully effective, by disapplying, if need be, any contrary provision of national law. EU law must be interpreted as meaning that where there has been a finding of discrimination which is contrary to EU law, and for as long as measures reinstating equal treatment have not been adopted, the reinstatement of equal treatment, in a case such as that at issue in the main proceedings, involves granting civil servants disadvantaged by the previous remuneration and advancement system the same benefits as those enjoyed by the civil servants treated more favourably by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the pay scale and, accordingly, the award of financial compensation to those civil servants discriminated against in the sum of the difference between the amount of remuneration that the civil servant concerned ought to have received had he not been treated in a discriminatory manner and the remuneration which he in fact received.

Case number

C-193/17

Case name

Cresco Investigation

Document

Judgment ECLI:EU:C:2019:43

Date

22/01/2019

Source of the question referred for a preliminary ruling

Oberster Gerichtshof (Supreme Court, Austria)

Name of the parties

Cresco Investigation GmbH v Markusu Achatziju

Subject matter

Employment and social policy; prohibition of discrimination on grounds of religion; additional allowance on top of payment for services rendered on Good Friday

Key words

Cresco - Social Policy -Charter of Fundamental Rights of the European Union- Equal treatment in employment and occupation - Directive 2000/78/EC- Direct discrimination on grounds of religion - National legislation grating certain employees a day’s holiday on Good Friday - Justification - Obligations of private employers and national courts resulting from the incompatibility of national law with Directive 2000/78

Question referred for a preliminary ruling

‘(1)      Is EU law, in particular Article 21 of the [Charter], in conjunction with Articles 1 and 2(2)(a) of Directive [2000/78], to be interpreted as precluding, in a dispute between an employee and an employer in the context of a private employment relationship, a national rule under which Good Friday is a holiday, with an uninterrupted rest period of at least 24 hours, only for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church, and under which, if an employee [belonging to one of those churches] works, despite that day being a holiday, he is entitled, in addition to the pay received as he is allowed not to work on account of the day being a public holiday, to payment for the work actually done, whereas other employees, who are not members of those churches, do not have any such entitlement?

(2)      Is EU law, in particular Article 21 of the [Charter], in conjunction with Article 2(5) of Directive [2000/78], to be interpreted as meaning that the national legislation referred to in the first question, which - as measured against the total population and the membership, on the part of the majority of the population, of the Roman Catholic Church - grants rights and entitlements to only a relatively small group of members of certain (other) churches, is not affected by that directive because it concerns a measure which, in a democratic society, is necessary to ensure the protection of the rights and freedoms of others, particularly the right freely to practise a religion?

(3)      Is EU law, in particular Article 21 of the [Charter], in conjunction with Article 7(1) of Directive [2000/78], to be interpreted as meaning that the national legislation referred to in the first question constitutes positive action for the benefit of members of the churches mentioned in the first question designed to guarantee their full equality in working life and to prevent or offset disadvantages to those members due to religion, if they are thereby granted the same right to practise their religion during working hours on what is an important holiday for that religion, such as otherwise exists for the majority of employees in accordance with a separate provision of national law, because generally employees are not required to work on the holidays for the religion that is observed by the majority of employee?

If it is found that there is discrimination within the meaning of Article 2(2)(a) of Directive [2000/78]:

(4)      Is EU law, in particular Article 21 of the [Charter], in conjunction with Articles 1, 2(2)(a) and 7(1) of Directive [2000/78], to be interpreted as meaning that, so long as the legislature has not created a non-discriminatory legal situation, a private employer is required to grant the rights and entitlements set out in the first question in respect of Good Friday to all employees, irrespective of their religious affiliation, or must the national provision referred to in the first question be disapplied in its entirety, with the result that the rights and entitlements in respect of Good Friday set out in the first question are not to be granted to any employee?’

Decision

1.      Articles 1 and 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that national legislation under which, first, Good Friday is a public holiday only for employees who are members of certain Christian churches and, second, only those employees are entitled, if required to work on that public holiday, to a payment in addition to their regular salary for work done on that day, constitutes direct discrimination on grounds of religion.

The measures provided for by that national legislation cannot be regarded either as measures necessary for the protection of the rights and freedoms of others, within the meaning of Article 2(5) of that directive, or as specific measures intended to compensate for disadvantages linked to religion, within the meaning of Article 7(1) of the directive.

2.      Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until the Member State concerned has amended its legislation granting the right to a public holiday on Good Friday only to employees who are members of certain Christian churches, in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday, provided that the latter have sought prior permission from that employer to be absent from work on that day, and, consequently, to recognise that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to approve such a request.

Case number

C-68/17

Case name

IR

Document

Judgment ECLI:EU:C:2018:696

Date

11/09/2018

Source of the question referred for a preliminary ruling

Bundesarbeitsgericht (Federal Labour Court, Germany)

Name of the parties

IR v JQ

Subject matter

Employment and social policy; differential treatment on grounds of religion; dismissal

Key words

IR - Social Policy- Directive 2000/78/EC - Equal treatment in employment and occupation - Occupational activities of churches - Occupational requirements - Duty of good faith and loyalty towards the ethos of the church - Difference of treatment based on faith - Dismissal of a Catholic worker, in a managerial role, because of a second marriage following divorce

Question referred for a preliminary ruling

(1)      Is the second subparagraph of Article 4(2) of [Directive 2000/78] to be interpreted as meaning that the [Catholic] [C]hurch can determine with binding effect that an organisation such as [IR], where employees in managerial positions are required to act in good faith and with loyalty, shall differentiate between employees who belong to the church and those who belong to another faith or to none at all?

(2)      If the first question is answered in the negative:

(a)      Must the provision of national law, in this case Article 9(2) of the [AGG], according to which unequal treatment of this kind on the basis of the religious affiliation of employees is justified in accordance with the Church’s self-perception, be disapplied in these proceedings?

(b)      What requirements apply, in accordance with the second subparagraph of Article 4(2) of Directive 2000/78, in respect of a requirement for employees of a church or one of the other organisations mentioned to act in good faith and with loyalty to the organisation’s ethos?’

Decision

(1)      The second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it allows a religious organisation such as IR to require, from its employees of the same faith, an attitude of good faith and loyalty greater than that required from employees of a different faith or those with no faith at all, only to the extent that that requirement complies with the criteria stated in the first subparagraph of Article 4(2) of Directive 2000/78.

(2)      A national court hearing a dispute between two private parties is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from the general principle of non-discrimination on grounds of religion and to guarantee the full effectiveness of that principle by disapplying, if need be, any contrary provision of national law.

Case number

C-24/17

Case name

Österreichischer Gewerkschaftsbund

Document

Judgment ECLI:EU:C:2019:373

Date

08/05/2019

Source of the question referred for a preliminary ruling

Oberster Gerichtshof (Supreme Court, Austria)

Name of the parties

Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst v Republik Österreich

Subject matter

Employment and social policy; age discrimination; legality of the federal system of salaries and promotions for contract staff in the civil service

Key words

Österreichischer Gewerkschaftsbund - Social policy - Prohibition of all discrimination on grounds of age - Directive 2000/78/EC - Exclusion of professional experience obtained before the age of 18 - New system of remuneration and advancement - Maintenance of the difference in treatment - Freedom of movement for workers - Regulation (EU) No 492/2011 - National legislation providing for account to be taken of a proportion of previous periods of service

Question referred for a preliminary ruling

‘(1)      (a)      Is European Union law, in particular Articles 1, 2 and 6 of [Directive 2000/78], in conjunction with Article 21 of the Charter …, to be interpreted as precluding national legislation under which a remuneration system which (in relation to the accreditation of previous service periods completed before the age of 18) discriminates on grounds of age is replaced by a new remuneration system, under which, however, the transition of existing public servants to the new remuneration system occurs in such a way that the new system is implemented retroactively to the date on which the original law entered into force, but the initial grading in the new remuneration system is based on the salary actually paid under the old remuneration system for a specific transition month (February 2015), with the result that the previously existing age discrimination continues in terms of its financial effects?

(b)      If the answer to Question [1(a)] is in the affirmative:

Is European Union law, in particular Article 17 of [Directive 2000/78], to be interpreted as meaning that existing public servants who were discriminated against in the old remuneration system in relation to the accreditation of previous service periods completed before the age of 18 must receive financial compensation if that age discrimination continues in terms of its financial effects even after transition to the new remuneration system?

(c)      If the answer to Question [1(a)] is in the negative:

Is European Union law, in particular Article 47 of the Charter …, to be interpreted as meaning that the fundamental right to effective legal protection enshrined therein precludes national legislation under which the age-discriminatory remuneration system is no longer to apply in current and future procedures and the transition of the remuneration of existing public servants to the new remuneration system is to be based solely on the salary calculated or paid for the transition month?

(2)      Is European Union law, in particular Article 45 TFEU, Article 7(1) of Regulation [No 492/2011], and Articles 20 and 21 of the Charter …, to be interpreted as precluding legislation under which previous service periods completed by a contractual public servant

-        in an employment relationship with a local authority or municipal association of a Member State of the [EEA], the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which [the Republic of] Austria is a member, or with any similar body, must be accredited in their entirety,

-        in an employment relationship with another employer, only when exercising a relevant occupation or relevant administrative traineeship, must be accredited up to a maximum of 10 years in total?’

Decision

1.      Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in combination with Article 21 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, entering into force retroactively, that, for the purposes of putting an end to discrimination on grounds of age, provides for the transition of active contractual public servants to a new system of remuneration and advancement in the context of which the initial grading of those contractual public servants is calculated according to their last remuneration paid under the previous system.

2.      In the event that national provisions cannot be interpreted in conformity with Directive 2000/78, the national court is required to provide, within the limits of its jurisdiction, the legal protection that individuals derive from that directive and to ensure the full effectiveness of that directive, disapplying, if need be, any incompatible provision of national legislation. EU law must be interpreted as meaning that, where discrimination, contrary to EU law, has been established, as long as measures reinstating equal treatment have not been adopted, the restoration of equal treatment, in a case such as that at issue in the main proceedings, involves granting contractual public servants treated unfavourably by the old system of remuneration and advancement the same benefits as those enjoyed by the contractual public servants favoured by that system, both as regards the recognition of periods of service completed before the age of 18 and advancement in the salary scale and, consequently, granting compensation to contractual public servants discriminated against that is equal to the difference between the amount of remuneration the contractual public servant should have received if he had not been treated in a discriminatory manner and the amount of remuneration he actually received.

3.      Article 45 TFEU and Article 7(1) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as precluding national legislation, in accordance with which, in order to determine the remuneration seniority of a contractual public servant, previous service periods completed in an employment relationship with a local authority or municipal association of a Member State of the European Economic Area, the Republic of Turkey or the Swiss Confederation, or with an organisation of the European Union or an intergovernmental organisation of which Austria is a member, or with any similar body, must be accredited in their entirety, whereas all other previous service periods are taken into account only up to a maximum of 10 years and in so far as they are relevant.

Case number

C-414/16

Case name

Egenberger

Document

Judgment ECLI:EU:C:2018:257

Date

17/4/2018

Source of the question referred for a preliminary ruling

Bundesarbeitsgericht (Federal Labour Court, Germany)

Name of the parties

Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV

Subject matter

Employment and social policy; discrimination claims

Key words

Egenberger - Equal treatment - Difference of treatment on grounds of religion or belief - Occupational activities within churches and other organisations the ethos of which is based on religion or belief - Religion or belief constituting a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos - Nature and context of the activities

Question referred for a preliminary ruling

‘(1)      Is Article 4(2) of Directive [2000/78] to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether a particular religion of an applicant, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer or church’s ethos?

(2)      If the answer to Question 1 is in the negative:

In a case sch as the present, is it necessary to disapply a provision of national law - such as, in this case, the first alternative of Paragraph 9(1) of the AGG - which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations affiliated to them is also lawful where a particular religion, in accordance with the self-perception of the religious community, having regard to its right of self-determination, constitutes a justified occupational requirement?

(3)      If the answer to Question 1 is in the negative:

What requirements are there as regards the nature of the activity or the context in which it is carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive [2000/78]?’

Decision

(1)      Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Articles 9 and 10 of the directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where a church or other organisation whose ethos is based on religion or belief asserts, in support of an act or decision such as the rejection of an application for employment with it, that by reason of the nature of the activities concerned or the context in which the activities are to be carried out, religion constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the church or organisation, it must be possible for such an assertion to be the subject, if need be, of effective judicial review by which it can be ensured that the criteria set out in Article 4(2) of that directive are satisfied in the particular case.

(2)      Article 4(2) of Directive 2000/78 must be interpreted as meaning that the genuine, legitimate and justified occupational requirement it refers to is a requirement that is necessary and objectively dictated, having regard to the ethos of the church or organisation concerned, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organisation. That requirement must comply with the principle of proportionality.

(3)      A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in conformity with Article 4(2) of Directive 2000/78, to ensure within its jurisdiction the judicial protection deriving for individuals from Articles 21 and 47 of the Charter of Fundamental Rights of the European Union and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.

Case number

C-190/16

Case name

Fries

Document

Judgment ECLI:EU:C:2017:513

Date

05/07/2017

Source of the question referred for a preliminary ruling

Bundesgerichtshof (Federal Labour Court, Germany)

Name of the parties

Werner Fries v Lufthansa CityLine GmbH

Subject matter

Air transport; age discrimination; aircraft operation

Key words

Fries - Air transport - Regulation (EU) No 1178/2011 - Holders of a pilot’s licence who have attained the age of 65 prohibited from acting as pilots of aircraft engaged in commercial air transport - Validity - Charter of Fundamental Rights of the European Union - Freedom of occupation - Equal treatment - Discrimination on grounds of age

Question referred for a preliminary ruling

‘1.      Is FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 compatible with the prohibition of discrimination on grounds of age under Article 21(1) of the Charter?

2.      Is FCL.065(b) in Annex I to Regulation No 1178/2011 compatible with Article 15(1) of the Charter, according to which everyone has the right to engage in work and to pursue a freely chosen or accepted occupation?

3.      If the first and second questions are answered in the affirmative:

(a)      Are so-called ferry flights operated by an air carrier carrying no passengers, cargo or mail also covered by the term “commercial air transport” within the meaning of FCL.065(b) [in Annex I] or the definition of that term [set out] in FCL.010 in Annex I to Regulation No 1178/2011?

(b)      Are training and the conducting of examinations in which a pilot over the age of 65 remains in the cockpit of the aircraft as a non-flying crew member covered by the term “commercial air transport” within the meaning of FCL.065(b) [in Annex I] or the definition of that term [set out] in FCL.010 in Annex I to Regulation No 1178/2011?’

Decision

1.      Consideration of the first and second questions has revealed nothing that might affect the validity of point FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, in the light of Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union.

2.      Point FCL.065(b) in Annex I to Regulation No 1178/2011 must be interpreted as prohibiting the holder of a pilot’s licence who has attained the age of 65 neither from acting as a pilot in ferry flights, operated by an air carrier carrying no passengers, cargo or mail, nor from working as an instructor and/or examiner on board an aircraft, without being part of the flight crew.

Case number

C-143/16

Case name

Abercrombie & Fitch Italia

Document

Judgment ECLI:EU:C:2017:566

Date

19/07/2017

Source of the question referred for a preliminary ruling

Corte suprema di cassazione (Supreme Court of Cassation, Italy)

Name of the parties

Abercrombie & Fitch Italia Srl v Antoninu Bordonaru

Subject matter

Employment and social policy; prohibition of discrimination on grounds of age

Key words

Bordonaro - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation -Age discrimination - On-call employment contract which may be concluded with persons under 25 years of age - Automatic termination of the employment contract when the worker reaches 25 years of age

Question referred for a preliminary ruling

‘Is the rule of national law set out in Article 34 of Legislative Decree No 276/2003, according to which an on-call employment contract may, in all circumstances, be concluded in respect of services provided by persons under 25 years of age, contrary to the principle of non-discrimination on grounds of age referred to in Directive 2000/78 and Article 21(1) of the Charter?’

Decision

Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1), Article 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a provision, such as that at issue in the main proceedings, which authorises an employer to conclude an on-call contract with a worker of under 25 years of age, whatever the nature of the services to be provided, and to dismiss that worker as soon as he reaches the age of 25 years, since that provision pursues a legitimate aim of employment and labour market policy and the means laid down for the attainment of that objective are appropriate and necessary.

Case number

C-406/15

Case name

Milkova

Document

Judgment ECLI:EU:C:2017:198

Date

09/03/2017

Source of the question referred for a preliminary ruling

Varhoven administrativen sad (Supreme Administrative Court, Bulgaria)

Name of the parties

Petya Milkova v Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol

Subject matter

Employment and social policy; equal treatment; disability rights

Key words

Milkova - Social policy - Equal treatment in employment and occupation - United Nations Convention on the Rights of Persons with Disabilities -Directive 2000/78/EC - Enhanced protection in the event of dismissal of employees with disabilities - No such protection for civil servants with disabilities - General principal of equal treatment

Question referred for a preliminary ruling

‘(1)      Does Article 5(2) of the UN Convention … allow legislation whereby Member States provide specific advance protection in the event of dismissal of employees with disabilities, but not of civil servants with the same disabilities?

(2)      Does Article 4, along with the other provisions of Directive [2000/78], permit a legal framework conferring specific advance protection in the event of dismissal of employees with disabilities, but not of civil servants with the same disabilities?

(3)      Does Article 7 of Directive 2000/78 permit employees with disabilities, but not civil servants with the same disabilities, to be afforded specific advance protection in the event of dismissal?

(4)      If the first and third questions are answered in the negative, is it necessary, in the light of the facts and circumstances of the present case, in order to comply with the provisions of international and Community law, that the specific advance protection in the event of dismissal of employees with disabilities provided for by the national legislator should also be applied to civil servants with the same disabilities?’

Decision

1.      Article 7(2) of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009, and in conjunction with the general principle of equal treatment enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, must be construed as allowing legislation of a Member State, such as that at issue in the main proceedings, which confers on employees with certain disabilities specific advance protection in the event of dismissal, without conferring such protection on civil servants with the same disabilities, unless it has been established that there has been an infringement of the principle of equal treatment, that being a matter for the referring court to determine.When making that determination, the comparison of the situations must be based on an analysis focusing on all the relevant rules of national law governing the positions of employees with a particular disability, on the one hand, and the positions of civil servants with the same disability, on the other, having regard, in particular, to the purpose of the protection against dismissal at issue in the main proceedings.

2.      In the event that Article 7(2) of Directive 2000/78, read in the light of the United Nations Convention on the Rights of Persons with Disabilities and in conjunction with the general principle of equal treatment, precludes legislation of a Member State such as that at issue in the main proceedings, the obligation to comply with EU law would require that the scope of the national rules protecting employees with a particular disability should be extended, so that those protective rules also benefit civil servants with the same disability.

Case number

C-356/12

Case name

Glatzel

Document

Judgment ECLI:EU:C:2014:350

Date

22/05/2014

Source of the question referred for a preliminary ruling

Bayerischer Verwaltungsgerichtshof (Germany)

Name of the parties

Wolfgang Glatzel v Freistaat Bayern

Subject matter

Transport; Community driving licence - Fundamental rights; inclusion of people with disabilities; visual acuity

Key words

 Glatzel - Transport - Directive 2006/126/EC - Point 6.4 of Annex III - Validity - Charter of Fundamental Rights of the European Union - United Nations Convention on the Rights of Persons with Disabilities - Driving licences - Physical and mental fitness to drive a motor vehicle - Minimum standards - Visual acuity - Equal treatment - No possibility of derogation - Proportionality

Question referred for a preliminary ruling

‘Is point 6.4 of Annex III to [Directive 2006/126] compatible with Article 20, Article 21(1) and Article 26 of the [Charter] in so far as that provision requires - without permitting any derogation - that applicants for Category C1 and Category C1E driving licences have a minimum visual acuity of 0,1 in their worse eye even if those persons use both eyes together and have a normal field of vision when using both eyes?’

Decision

The examination of the question does not reveal any information capable of affecting the validity of point 6.4 of Annex III to Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences, as amended by Commission Directive 2009/113/EC of 25 August 2009 in the light of Articles 20, 21(1) or 26 of the Charter of Fundamental Rights of the European Union.

Case number

C-122/15

Case name

C

Document

Judgment ECLI:EU:C:2016:391

Date

02/06/2016

Source of the question referred for a preliminary ruling

Korkein hallinto-oikeus (Supreme Administrative Court, Finland)

Name of the parties

Proceedings brought by C

Subject matter

Employment and social policy; differential treatment on grounds of age

Key words

C - Social policy - Principles of equal treatment and non-discrimination on grounds of age - Directive 2000/78/EC - Equal treatment in employment and occupation- Difference in treatment on grounds of age - National legislation providing, in certain situations, for higher taxation of pension income than earned income - Scope of application of Directive 2000/78 - Competence of the European Union in the field of direct taxation

Question referred for a preliminary ruling

‘(1)      Are the provisions of Article 3(1)(c) of Directive 2000/78/EC to be interpreted as meaning that national legislation such as the provisions on supplementary tax on retirement pension income in Paragraph 124(1) and (4) of Law 1992/1535 on income tax fall within the scope of EU law so that the provision prohibiting discrimination on grounds of age laid down in Article 21(1) of the Charter is applicable in the present case?

Questions 2 and 3 are submitted only in the event that the Court of Justice’s reply to Question 1 is that the matter falls within the scope of EU law:

(2)      If the first question is answered in the affirmative, are Article 2(1) and (2)(a) or (b) of Directive 2000/78 and the provisions of Article 21(1) of the Charter to be interpreted as precluding national legislation, such as the provisions of Paragraph 124(1) and (4) of Law 1992/1535 on income tax, concerning the supplementary tax on retirement pension income, under which the pension income received by a natural person, the receipt of which is based at least indirectly on the person’s age, is burdened in certain cases with more income tax than would be charged on the equivalent amount of earned income?

(3)      If those provisions of Directive 2000/78 and the Charter preclude national legislation such as the supplementary tax on pension income, must Article 6(1) of that directive be interpreted as meaning that national legislation such as the supplementary tax on pension income may nevertheless be regarded in terms of its aim as objectively and reasonably justified within the meaning of that provision of the directive, in particular on the basis of a legitimate employment policy, labour market or vocational training objective, since the purpose expressed in the preparatory materials for Law 1992/1535 on income tax is, by means of the supplementary tax on pension income, to collect tax revenue from recipients of pension income who are capable of paying, to narrow the difference of tax rates between pension income and earned income, and to improve incentives for older persons to continue working?’

Decision

Article 3(1)(c) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that national legislation, such as that at issue in the main proceedings, relating to a supplementary tax on pension income, does not fall within the substantive scope of that directive nor, therefore, is it covered by Article 21(1) of the Charter of Fundamental Rights of the European Union.

Case number

C-195/12

Case name

IBV & Cie

Document

Judgment ECLI:EU:C:2013:598

Date

26/09/2013

Source of the question referred for a preliminary ruling

Cour constitutionnelle (Belgium)

Name of the parties

Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne

Subject matter

Environment; cogeneration; biomass energy

Key words

 IBV - Cogeneration and high efficiency cogeneration - Regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants - Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste - Principle of equality and non-discrimination - Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘1.      Must Article 7 of Directive [2004/8], in conjunction if appropriate with Articles 2 and 4 of Directive [2001/77] and with Article 22 of Directive [2009/28], be interpreted, in the light of the general principle of equal treatment, of Article 6 of the Treaty on European Union and of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union [(“the Charter”)],

(a)      as applying only to high efficiency cogeneration plants, within the meaning of Annex III to [Directive 2004/8];

(b)      as requiring, permitting or prohibiting the availability of a support measure such as that in Article 38(3) of the [2001 Decree] to all cogeneration plants principally using biomass and meeting the conditions laid down by that article, with the exception of cogeneration plants principally using wood or wood waste?

2.      Would the answer be different if the cogeneration plant principally uses only wood or, on the contrary, only wood waste?’

Decision

1.      Article 7 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC must be interpreted as meaning that its scope is not limited solely to cogeneration plants which are high efficiency cogeneration plants within the meaning of that directive.

2.      In the present state of European Union law, the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union does not preclude the Member States, when introducing national support schemes for cogeneration and electricity production from renewable energy sources, such as those referred to in Article 7 of Directive 2004/8 and Article 4 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, from providing for an enhanced support measure such as that at issue in the main proceedings capable of benefiting all cogeneration plants principally using biomass with the exclusion of cogeneration plants principally using wood and/or wood waste.

Case number

C-476/11

Case name

HK Danmark

Document

Judgment ECLI:EU:C:2013:590

Date

26/09/2013

Source of the question referred for a preliminary ruling

Vestre Landsret (Denmark)

Name of the parties

HK Danmark v Experian A/S

Subject matter

Employment and social policy; age-related contributions

Key words

Experian - Social Policy - Principle of non-discrimination on grounds of age - Charter of Fundamental Rights of the European Union - Directive 2000/78/EC) - Occupational pension scheme - Increases in the amount of contributions on the basis of age

Question referred for a preliminary ruling

‘(1)      Must the exception in Article 6(2) of [Directive 2000/78] concerning the determination of age limits for admission or entitlement to retirement or invalidity benefits be interpreted as allowing Member States generally to except occupational social security schemes from the prohibition in Article 2 of [that] directive of direct or indirect discrimination on grounds of age in so far as that does not bring about discrimination on grounds of sex?

(2)      Must the exception in Article 6(2) of [Directive 2000/78] concerning the determination of age limits for admission or entitlement to retirement or invalidity benefits be interpreted as not precluding a Member State from maintaining a legal situation in which an employer can pay, as part of pay, pension contributions which increase with age, with the result, for example, that the employer pays a pension contribution of 6% for employees under 35, 8% for employees from 35 to 44 and 10% for employees over 45, in so far as that does not bring about discrimination on grounds of sex?’

Decision

The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 2 and 6(1) of that directive, must be interpreted as not precluding an occupational pension scheme under which an employer pays, as part of pay, pension contributions which increase with age, provided that the difference in treatment on grounds of age that arises therefrom is appropriate and necessary to achieve a legitimate aim, which it is for the national court to establish.

Case number

Case number

Document

Date

Source of the question referred for a preliminary ruling

Name of the parties

Subject matter

Key words

Questions referred for a preliminary ruling

Decision

Case number

Case number

Document

Date

Source of the question referred for a preliminary ruling

Name of the parties

Subject matter

Key words

Questions referred for a preliminary ruling

Decision

Case number

C-19/21

Case name

Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné)

Document

Judgment ECLI:EU:C:2022:605

Date

01/08/2022

Source of the question referred for a preliminary ruling

Rechtbank Den Haag zittingsplaats Haarlem (District Court, The Hague, sitting in Haarlem, Netherlands)

Name of the parties

I, S v Staatssecretaris voor Justitie en Veiligheid¶

Subject matter

Area of freedom, security and justice; asylum policy; refusal of an application for admission

Key words

I, S - Criteria and mechanisms for determining the Member State responsible for examining an application for international protection - Unaccompanied minor with a relative legally present in another Member State - Refusal by that Member State of that minor’s take charge request - Right to an effective remedy of that minor or of that relative against the refusal decision - Charter of Fundamental Rights of the European Union - Best interests of the child

Question referred for a preliminary ruling

‘(1)      Must Article 27 of the [Dublin III Regulation] be interpreted as requiring the requested Member State, whether or not in conjunction with Article 47 of the Charter, to provide the applicant residing in the requesting Member State and seeking transfer pursuant to Article 8 (or Article 9 or 10) of the [Dublin III Regulation], or the applicant’s family member referred to in Article 8, 9 or 10 of the [Dublin III Regulation], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(2)      If the answer to the first question is in the negative and Article 27 of the [Dublin III Regulation] does not provide a basis for an effective remedy, must Article 47 of the Charter - read in conjunction with the fundamental right to family unity and the best interests of the child (as laid down in Articles 8 to 10 and recital 19 of the [Dublin III Regulation]) - be interpreted as requiring the requested Member State to provide the applicant residing in the requesting Member State and seeking transfer pursuant to [Articles 8 to 10)] of the [Dublin III Regulation] or the [relative] of the applicant referred to in [that provision], with an effective remedy before a court or tribunal against the refusal of the request to take charge?

(3)      If Question [1] or Question [2] (second part) is answered in the affirmative, in what way and by which Member State should the requested Member State’s decision to refuse the request and the right to appeal against it be communicated to the applicant or the applicant’s [relative]?’

Decision

Article 27(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction with Articles 7, 24 and 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that:

it requires a Member State to which a take charge request has been made, based on Article 8(2) of that regulation, to grant a right to a judicial remedy against its refusal decision to the unaccompanied minor, within the meaning of Article 2(j) of that regulation, who applies for international protection, but not to the relative of that minor, within the meaning of Article 2(h) of that regulation.

Case number

C-709/20

Case name

The Department for Communities in Northern Ireland

Document

Judgment ECLI:EU:C:2021:602

Date

15/07/2021

Source of the question referred for a preliminary ruling

Appeal Tribunal for Northern Ireland (United Kingdom)

Name of the parties

CG v The Department for Communities in Northern Ireland

Subject matter

Union citizenship; non-discrimination on grounds of nationality; refusal of social assistance¶

Key words

CG - Citizenship of the Union - National of a Member State without an activity residing in the territory of another Member State on the basis of national law - Non-discrimination based on nationality - Directive 2004/38/EC - Conditions for obtaining a right of residence for more than three months - Social assistance - Concept - Equal treatment - Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland - Transition period - National provision excluding Union citizens with a right of residence for a fixed period under national law from social assistance - Charter of Fundamental Rights of the European Union

Question referred for a preliminary ruling

‘1.      ‘Is Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations], which was inserted by [the 2019 Social Security Regulations], which excludes from entitlement to social security benefits [EU citizens] with a domestic right of residence (Limited Leave to Remain) [in this case “pre-settled status” under Appendix EU] unlawfully discriminatory (either directly or indirectly) pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972?

2.      If the answer to question 1 is in the affirmative, and Regulation 9(3)[d](i) of the [2016 Universal Credit Regulations] is held to be indirectly discriminatory, is [that provision] justified pursuant to Article 18 [TFEU] and inconsistent with the [United Kingdom’s] obligations under the European Communities Act 1972?’

Decision

Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not precluding the legislation of a host Member State which excludes from social assistance economically inactive Union citizens who do not have sufficient resources and to whom that State has granted a temporary right of residence, where those benefits are guaranteed to nationals of the Member State concerned who are in the same situation.

However, provided that a Union citizen resides legally, on the basis of national law, in the territory of a Member State other than that of which he or she is a national, the national authorities empowered to grant social assistance are required to check that a refusal to grant such benefits based on that legislation does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter of Fundamental Rights of the European Union. Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions. In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit.

Case number

C-490/20

Case name

Stolichna obshtina, rayon „Pancharevo“

Document

Judgment ECLI:EU:C:2021:1008

Date

14/12/2021

Source of the question referred for a preliminary ruling

Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria)

Name of the parties

V. М. А. v Stolichna obshtina, rayon „Pancharevo“

Subject matter

Union citizenship; prohibition of discrimination on grounds of nationality; same-sex parenthood; refusal to issue a birth certificate for a child

Key words

V.M.A. - Citizenship of the Union - Right to move and reside freely within the territory of the Member States - Child born in the host Member State of her parents - Birth certificate issued by that Member State mentioning two mothers in respect of that child - Refusal by the Member State of origin of one of those two mothers to issue a birth certificate for the child in the absence of information as to the identity of the child’s biological mother - Possession of such a certificate being a prerequisite for the issue of an identity card or a passport - Persons of the same sex not recognised as parents under the national legislation of that Member State of origin

Question referred for a preliminary ruling

‘(1)      Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the [Charter] be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the [European Union] was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

(2)      Must Article 4(2) TEU and Article 9 of the [Charter] be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

Must Article 4(2) TEU be interpreted as allowing Member States to request information on the biological parentage of the child?

Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

(3)      Is the answer to Question 1 affected by the legal consequences of [the Withdrawal Agreement] in that one of the mothers listed on the birth certificate issued in another Member State is a United Kingdom national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as [a Union] citizen?

(4)      If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate [which is one of the model civil status certificates] applicable [at a national level]?’

Decision

Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

Case number

C-483/20

Case name

Commissaire général aux réfugiés and aux apatrides

Document

Judgment ECLI:EU:C:2022:103

Date

22/02/2022

Source of the question referred for a preliminary ruling

Conseil d’État (Belgium)